Sazimanoska v The Queen [2020] VSCA 66

1 The applicant pleaded guilty to having trafficked in cannabis in a commercial quantity, contrary to s 71AA of the Drugs, Poisons and Controlled Substances Act 1981. She was one of eight co-offenders, all of whom were charged on Indictment C1711393 with that same offence, albeit in some cases between different dates throughout several months in 2017. So far as the applicant is concerned, the period in question was between 21 June and 1 August of that year. Other offenders were alleged to have been engaged in trafficking for longer periods, between, for example, 13 April 2017 and 1 August 2017.

2 The applicant's husband, Nejat Sazimanoski, was also a co-offender. He pleaded guilty to five indictable charges, including one of trafficking in a commercial quantity of cannabis, and two of negligently dealing with proceeds of crime. He was also dealt with for two charges of possessing an unregistered category E handgun. On 17 April 2018, he was sentenced to a total effective term of 5 years and 3 months' imprisonment with a non-parole period of 2 years and 6 months. On 24 December 2019, he was released on parole.

3 On 3 May 2019, the applicant was sentenced as follows:

Trafficking in a commercial quantity of drug of dependence;

[s 71AA - Drugs, Poisons and Controlled Substances Act 1981]

Pre-sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:

Section 6AAA Statement: 3 years and 6 months' imprisonment with a non‑parole period of 2 years and 4 months.

4 The applicant now seeks leave to appeal against that sentence. She relies upon four grounds of appeal, which are as follows:

Ground 1:

The learned sentencing judge erred in failing to take into account that the applicant's adjustment disorder with anxiety related (at least in part) to the uncertainty regarding the sentence to be imposed, and that this fact rendered the delay between plea and sentence a significant sentencing consideration.

Ground 2:

The learned sentencing judge erred in reasoning that, by virtue of sections 5(2H) and 44 of the Sentencing Act 1991, 'substantial and compelling circumstances' were required in order to impose a term of imprisonment of 12 months or less.

Ground 3:

The learned sentencing judge erred in failing to take into account the delay in sentencing and the applicant's adjustment disorder with anxiety in considering whether substantial and compelling circumstances existed.

Ground 4:

The individual sentence and non-parole period are manifestly excessive, having regard to the delay in sentencing and the applicant's adjustment disorder with anxiety, together with other significant factors in mitigation, including the applicant's early plea of guilty, lack of criminal history, and prospects for rehabilitation.

5 For the reasons that follow, we would refuse leave to appeal.

Circumstances surrounding the commission of this offence

6 By way of overview, the applicant was involved in trafficking a total of some 73 pounds (or just over 33 kilograms) of cannabis throughout the period between June and August 2017 that gave rise to the charge against her. The circumstances surrounding the commission of the offence were fully summarised by the judge in his Honour's sentencing remarks.

7 The judge began his sentencing remarks by noting that it had been agreed that he could treat the summary of the prosecution opening, dated 12 July 2018, as a statement of agreed facts.[1]

8 His Honour's outline of the nature of the applicant's offending reads as follows:

In March 2017, police commenced 'Operation Tropics' which targeted the cannabis trafficking activities of your husband and co-offender, Nejat Sazimanoski ('Sazimanoski'). This operation was concerned with his trafficking operations; his suppliers, customers and distributors. Police used tracking devices and surveillance to track you and your co-offender, as well as others caught up in 'Operation Tropics'. You were all involved in the distribution and sale of cannabis to or from Sazimanoski.

Ha Huu Nguyen, Oanh Nguyen and Tuan Anh Le supplied cannabis to Sazimanoski in return for payment. You and your husband then distributed the cannabis to Stuart Wicks, Frank Margariti and John Taouk for on-sale.

Police telephone intercepts and surveillance disclosed the extent of your involvement in trafficking cannabis, which occurred between 21 June and 1 August 2017, a period of six weeks. ...

On 21 June 2017, you asked Ha Nguyen if he was coming and he replied 'if you take I come (20 pounds)'.

On 2 July 2017, you told Le to bring a one pound sample of cannabis to your home in Lalor. Le arrived at your home and a transaction in an unknown quantity took place.

On 5 July 2017, you were observed by police carrying a white polystyrene box to a car. This was later found to contain seven pounds of cannabis.

On 11 July 2017, you were present at the Wollert property[2] when Ha Nguyen delivered 40 pounds of cannabis. You were also involved in trafficking seven pounds of poor grade cannabis.

On 22 July 2017, you removed boxes and bags containing eight pounds of cannabis from the boot of your car and took them into a garage and placed them alongside Margariti's car. You were also present when Margariti was supplied with the eight pounds of cannabis. A telephone intercept detected you obtaining and bringing back vacuum sealed bags to the premises. These were used to package the cannabis supplied to Margariti. CCTV footage from the Wollert premises showed you being present and in possession of these bags.

On 1 August 2017, you asked Ha Nguyen where he was, before you told him that you were on your way with 30 pounds of cannabis.

The prosecution alleges you trafficked 73 pounds of cannabis during the charged period. This equates to just over 33 kilograms or 1⅓ times the commercial quantity threshold.

These facts give rise to charge 7 on the indictment (trafficking in a commercial quantity of cannabis).

You were arrested along with your husband at the Wollert property. Upon being searched by police a notebook was found in your handbag with notes regarding the sale and distribution of cannabis, which included a reference to a customer and an amount of $78,000. I note that this does not form part of the sentencing facts on charge 7, but was led by the Crown way of background and context.[3]

9 His Honour observed that trafficking in a commercial quantity of a drug of dependence must be viewed as a serious criminal offence, as indicated by the maximum penalty of 25 years' imprisonment. He added that this offence causes grave harm to the community, noting that this Court has, on a number of occasions, commented upon the harmful effects of trafficking in, inter alia, cannabis.

10 The judge described the applicant as having played a significant role in a highly sophisticated criminal enterprise. She had assisted her husband in the conduct of his extensive and successful trafficking business. She assisted him to act as a conduit between the growers of the cannabis, and the final buyers, on the street. She was described as a 'willing lieutenant'[4], assisting a wholesaler in supplying cannabis to other businesses, which would then, ultimately, supply to street level dealers.

11 It was not alleged that the applicant had engaged in Giretti[5] trafficking between the relevant dates. Nor was it alleged that she and her husband were operating a business jointly such that his acts could be attributed to her. Rather, her culpability fell to be assessed by what she, herself, had done in furtherance of her husband's business, and not through any principle of complicity.

12 Nonetheless, the applicant was well aware of what her husband was doing. Her lifestyle depended upon the success of the enterprise. At the same time, she was in a subservient relationship with him, and in the habit of obeying his directions. That lessened her moral culpability to some extent, though it still remained 'relatively high'.[6]

13 Because the applicant's role was more limited than that of her husband, his Honour, perhaps charitably, was not prepared to treat her offending as falling within the 'mid-range' of seriousness for offences of this type.[7] Accordingly, she did not fall within the principles laid down by this Court in Nguyen v The Queen[8] to the effect that sentences should be increased incrementally for offences such as cultivation of commercial quantities of cannabis, which were to be regarded as in the 'mid‑category of seriousness'.

14 The sentencing judge then noted that the applicant was aged 45 at the time of sentence, and that she had no prior convictions. She had been born and raised in Macedonia, and had been educated up to the equivalent of Year 8.

15 In 1995, the applicant had married Nejat Sazimonski in Macedonia, and they both subsequently moved to this country with his parents. The applicant's own parents and siblings still live in Macedonia.

16 The applicant's first child was born in 1995, and her second in 1996. She had three other children, born in 2000, 2002, and 2004. Those three children were still at school, and lived with the applicant at home, whilst her two eldest children were employed full time.

17 The applicant was the primary caregiver for four of her five children, and recently had taken on the care of her husband's mother, who was elderly, unwell, and unable to continue living independently. Accordingly, the applicant had been receiving a carer's allowance for looking after her.

18 There was evidence that the applicant's husband was a controlling figure, and that she was subservient to him. In a psychological report prepared by Dr Aaron Cunningham, dated 11 July 2018, it was noted that she had taken on the role of a 'dutiful wife'. She had never engaged in paid employment.

19 The applicant primarily speaks Macedonian at home, but also speaks functional English. She was said to be socially isolated, with her family being the centre of her life.

You have no reported medical illness nor have you had any involvement with alcohol or drugs of dependence. You are presently experiencing adjustment anxiety which is situational as a result of the current matters. Dr Cunningham opines that 'these symptoms will reduce significantly' once there is certainty regarding your future. You[r] counsel accepted that Verdins principles are not engaged in your case.[9]

21 The judge then summarised the various mitigating factors that were present in this case. His Honour rejected the submission that there were 'exceptional circumstances' present, of the type spoken of in Markovic v The Queen,[10] giving rise to the exercise of the residual discretion of mercy. However, he did accept that the hardship caused to family members by the applicant's imprisonment would make the burden of incarceration greater for her than it otherwise might be.

22 His Honour took into account the plea of guilty at the earliest reasonable opportunity and said that this would lead to a significant discount in the sentence that otherwise would have been appropriate. However, he was not prepared, on the evidence before the Court, to find true contrition and remorse. While no Verdins[11] principles were engaged, the judge took into account the fact that the applicant was suffering from situational adjustment anxiety, which would add to the burden of imprisonment upon her. He accepted that she had good prospects of rehabilitation, and was unlikely to reoffend in the future.

Moreover, there has been some delay in this case, which is not attributable to you. You have had this matter and the risk of going to prison hanging over you for some time. I take these effects of delay into account in your favour.[12]

24 The judge then dealt with questions of parity, none of which are relevant for present purposes.

25 The judge then considered comparable cases, and in particular, Nguyen. He said that these were of limited assistance, having regard to the particular facts in the present case. He noted that offending of this kind was prevalent, and that general deterrence had to play an important role in the exercise of the sentencing discretion.

26 Finally, his Honour dealt with the question of whether a custodial sentence was required. He said:

You fall to be sentenced for a category 2 offence pursuant to s 3 of the Sentencing Act 1991 ('the Act'). This means that in accordance with s 5(2H) of the Act, I must sentence you to a term of imprisonment (which is not a sentence of imprisonment combined with a community correction order) unless, as presently relevant, I find on the balance of probabilities there are 'substantial and compelling circumstances' that justify not sentencing you to that disposition. In determining whether 'substantial and compelling circumstances' are present in your case, I must have regard to the matters listed in s 5(2I) of the Act.

In DPP v Hudgson, in dealing with a similar provision in the Act, the Court of appeal said that:

It was plainly the intention of Parliament that the burden imposed upon an offender who sought to escape the operation of s 10 should be a heavy one, and not capable of being lightly discharged.

Later the Court said:

More specifically, we accept the Director's submission that the word 'compelling' connotes powerful circumstances of a kind wholly outside what might be described as 'run of the mill' factors, typically present in offending of this kind.

I have taken into account all of the matters p[u]t on your behalf by your counsel, including the circumstances detailed by him in the 'Addendum to Outline of Submissions on Plea in Mitigation['], dated 3 May 2019. However, I am not satisfied that your circumstances[,] taken together[,] satisfy the requirement of being 'substantial and compelling' in the relevant sense.

In any event, as I observed earlier, trafficking in cannabis in the manner you did in this case is a serious crime and your moral culpability is relatively high. I am of the view that a sentence of imprisonment with a non-parole period is the only sentence which will give appropriate weight to the purposes for which this sentence is imposed. I am, however, prepared to fix a non-parole period which will allow for your conditional release on parole earlier than I would have imposed in other circumstances.[13]

27 The judge then proceeded to sentence the applicant as set out above, at [3] of our reasons.

28 The plea hearing took place on 18 to 20 July 2018, but the applicant was not sentenced until 3 May 2019, a delay of more than 9 months. It was submitted that this period was extraordinary and largely unexplained. It was said that the applicant had been put into an invidious position. She could contact the Court and perhaps risk antagonising the bench, or continue to wait with the matter hanging over her head for an extraordinary period of time.

29 It was further said that his Honour's reference to there having been 'some delay' in this case understated the effect of that particular difficulty. Moreover, the judge had failed to link the applicant's adjustment disorder, and accompanying anxiety, to the delay that had occurred. This was said to constitute specific error, vitiating sentence and requiring the applicant to be sentenced afresh.

Ground 2 - ss 5(2H) and 44 of the Sentencing Act 1991

30 It was submitted that the judge had treated s 5(2H) of the Sentencing Act 1991, in combination with s 44(1) as effectively creating a requirement that more than 12 months' imprisonment be imposed. The prosecutor on the plea had contributed to that erroneous view of the relevant provisions, resulting in the judge effectively introducing a baseline, or minimum, sentence in relation to category 2 offences.

31 In enacting s 5(2H), the legislature had merely determined that unless 'substantial and compelling circumstances exist' a sentence of actual imprisonment would have to be imposed in relation to such offences. It had not determined that a sentence of 12 months' imprisonment or less could not be imposed in relation to offending of that kind.

32 It was conceded that the judge did not refer to the prosecutor's submission in the course of his sentencing remarks, but it was submitted that it must subliminally have tainted his decision not to combine a term of imprisonment with a Community Correction Order.

33 It was submitted that this factor had not been given sufficient weight.

34 It was submitted that the mitigating factors that were present made it clear that this sentence was wholly outside the range.

35 In oral submissions, counsel for the applicant submitted that if the Court were to order that the sentencing discretion be reopened, it should have regard to how the COVID-19 pandemic would impact her client's burden of imprisonment. She submitted that, in some circumstances, the pandemic could amount to 'exceptional circumstances' of the kind that could give rise to what might be termed a Markovic discount. She referred to the expressed concern of the applicant's family, including her husband, who is now on parole and in need of regular dialysis. Counsel handed up an affidavit deposed by one of the applicant's daughters, who had emphasised these concerns and the emotional hardship experienced by the family. Counsel also urged the Court to take judicial notice of the fact (asserted from the Bar table, but accepted to be correct) that, for the moment, personal visits at prisons had been cancelled.

36 It was accepted that there had been a significant and largely unexplained delay of about nine and a half months after the plea, until the applicant was sentenced. However, the sentencing judge was well aware of the evidence that the applicant's adjustment disorder with anxiety related, in part, to the uncertainty regarding the sentence that was to be imposed upon her.

37 Contrary to the applicant's submission, the judge took that matter specifically into account. He made that clear in the passage from his sentencing remarks, set out above at [20] of these reasons.

Ground 2 - ss 5(2H) and 44 of the Sentencing Act 1991

38 The respondent noted that the applicant relied, in support of this ground, on a discussion that took place between the judge and the prosecutor during the course of the plea hearing.

39 The written case deals with this particular ground in the following way:

In the course of that discussion, the learned sentencing judge did not state that a sentence of imprisonment of under 12 months would be 'out of the range'. Rather, his Honour asked the prosecutor whether the implication of section 5(2H) was that a sentence of under 12 months was 'excluded'.

It is not accepted that the prosecutor encouraged the possible interpretation that was raised by the learned sentencing judge. To the contrary, after engaging in a discussion with his Honour about the issue (and at the conclusion of that discussion), the prosecutor submitted the following:

So therefore I would submit that you go back to the first principle, which is that you must impose a term of imprisonment, taking into account all factors, whatever the appropriate sentence is, it's more a matter of what you can't do. What you have to do is impose a term of imprisonment and then taking into account all other factors, it would be how long is that sentence? And if it's of a certain length, one would have to impose a non-parole period. Which is the submission of the prosecution, which is that's what should be imposed. A term of imprisonment with a non-parole period.

Counsel appearing on behalf of the applicant did not address this issue in his response to the prosecutor's plea submissions.

The respondent submits that there is nothing to suggest that the discussion that occurred during the plea hearing - some nine and a half months prior to sentence being imposed - influenced the learned sentencing judge's determination of the appropriate sentence in this case.

Significantly, there is no explicit, or even oblique, reference to this reasoning in the learned sentencing judge's thorough sentencing remarks.

It is submitted that the mere fact that the learned sentencing judge decided to have the applicant assessed for a Community Correction Order ... does not confirm that his Honour was influenced by the relevant discussion during the plea hearing. That decision should be viewed in the context of his Honour having requested further submissions on the issue of whether or not there were substantial and compelling circumstances.

... [I]t is submitted that the learned sentencing judge ultimately balanced the various relevant sentencing considerations and concluded that the applicant's offending was simply too serious to impose a sentence other than a term of imprisonment with a non-parole period ...

The respondent submits that there was no error committed, as alleged by the applicant.[14]

40 The respondent submitted that there was nothing to suggest that the judge failed to take into account, or give adequate weight to, the delay that had occurred in this case. It was noted that no mention had been made of delay on behalf of the applicant in further written submissions filed on 3 May 2019, when the parties were given the opportunity to update matters relevant to sentence.

41 It was submitted that the sentence imposed upon the applicant was clearly within the range of sentencing options available. She had played a significant role in a highly sophisticated criminal enterprise. All mitigating factors had been taken into account, and given appropriate weight.

42 As regards the non-parole period, it was 50 per cent of the head sentence. It was submitted that a ratio of that kind could properly be regarded as generous.

43 In response to the applicant's submissions regarding COVID-19, counsel for the respondent submitted that the affidavit tendered deposed only to the applicant's daughter's state of mind. That was 'different to weighty evidence' regarding the impact of the pandemic, so far as the applicant herself, and more generally, the prison population.

44 As we have said earlier in these reasons, leave to appeal should be refused.

45 With regard to proposed Ground 1, which concerns the effect of delay upon the applicant, having regard to her adjustment disorder and anxiety, a fair reading of the judge's sentencing remarks makes it clear that this was a matter that was taken into account, and given appropriate weight. The moderate nature of the sentence ultimately imposed reflects that conclusion.

46 As regards proposed Ground 2, whatever error the prosecutor may have propagated in this regard, it did not find its way into the sentencing remarks. There is nothing to suggest that the judge believed that there was a baseline or a minimum sentence that had to be imposed. Quite the contrary.

48 In relation to the COVID-19 submission, we refer to what was said in Brown (aka Davis) v The Queen:[15]

With regard to the COVID-19 pandemic, and the submission put forward on behalf of the applicant in that regard, we readily acknowledge that this is a matter that is certain to come before this Court again in the immediate future. In the absence of any adequate material concerning the impact of the virus upon the Corrections system, as matters stand, and given that the situation is one that is rapidly evolving, we are hesitant to express a general statement of principle regarding how this Court (and others) should deal with this crisis as regards its effect upon relevant sentencing principles. We do accept, however, that the situation is causing additional stress and concern for prisoners and their families, as it is for every member of the community. The extent to which that may be taken into account, if at all, will be a matter to be resolved on the particular facts of any individual case.[16]

49 In any event, the COVID-19 submission was predicated on this Court having found error, and determined that the applicant should be sentenced afresh. As indicated above, that is not the position in this case.

50 Accordingly, the order of the Court will be that leave to appeal will be refused.

[1] DPP v Sazimanoska [2019] VCC 617, [2] ('Reasons').

[2] A property belonging to the applicant's daughter.

[5] R v Giretti (1986) 24 A Crim R 112 ('Giretti').

[8] (2016) 261 A Crim R 1 ('Nguyen').

[9] Reasons, [29] (citations omitted).

[10] (2010) 30 VR 589; [2010] VSCA 105 ('Markovic').

[11] R v Verdins (2007) 16 VR 269; [2007] VSCA 102 ('Verdins').

[13] Ibid [48]-[51] (citations omitted).

[15] [2020] VSCA 60.